Tax Accountability Amendment off ballot
By MICHAEL D. KLEMENS
When the petition drive to put the Tax Accountability Amendment on the ballot was launched July 5, 1989, sponsors insisted that their effort would pass constitutional muster. Thirteen months of frenetic activity ensued as proponents rounded up 489,949 signatures and whipped up public support. On August 22 the Illinois Supreme Court kayoed the campaign by ruling the measure off the ballot.
The amendment would have required that:
• any bill that would increase state revenues be passed by a three-fifths vote in both chambers;
Proponents banded together under the banner of the Tax Accountability Amendment Committee (TAAC). And their proposal, hard on the heels of the $1.2 billion package of tax increases passed by the Illinois General Assembly in 1989, proved immensely popular with citizens. Few doubted the successful ratification of the amendment if it were allowed on the ballot.
The measure proved equally popular with political types. Conservative Republican Steve Baer took on Jim Edgar in the GOP primary and hammered away at the issue. Democratic gubernatorial nominee Neil F. Hartigan took the pledge. Edgar did too after he disposed of Baer.
In Illinois there are three ways to propose a state constitutional amendment for voter ratification. The options are:
(1) at a constitutional convention;
Option one was not available because Illinois citizens, who get to vote on the question every 20 years, had in 1988 decided against calling a convention.
Option two failed this spring on partisan lines, with Democrats reluctant to undercut numerical advantages they hold in the General Assembly. The amendment fell four votes short of the 36 needed for passage from the Senate. A companion measure died in House committee.
So proponents turned to option three, the petition drive. However, the 1970 Constitution sharply limits that option: "Amendments shall be limited to structural and procedural subjects contained in Article IV [the legislative article]."
Three times before the courts had been asked to rule whether a proposed initiative met the test. Twice judges ruled initiatives off the election ballot; once they approved it. Those cases were:
• Coalition for Political Honesty v State Board of Elections — a 1976 case in which the court ruled that an amendment that would have restricted legislators' salaries, required disclosure of financial interests and prohibited voting where a conflict existed was not both structural and procedural.
• Lousin v State Board of Elections —a 1982 case in which the court held that an amendment that would have allowed initiative to pass laws did not meet the structural and procedural requirements.
• Coalition for Political Honesty v State Board of Elections — the 1980 case in which the court upheld the Cutback Amendment, ultimately approved by voters, that reduced the size of the Illinois House from 177 to 118 members and eliminated cumulative voting and multi-member districts.
The Chicago Bar Association (CBA) took the Tax Accountability Amendment to court. The CBA's 16-member board voted unanimously to file the challenge and protested charges that its action was politically motivated. "The CBA's goal in pursuing this lawsuit was to ensure that no single issue — no matter how politically popular — be used as justification to improperly amend our Constitution," CBA president Gordon B. Nash Jr. said.
The justices dealt at length with the intentions of the delegates to the 1970 Constitutional Convention. Delegates had rejected California-style initiative and allowed the procedure only for the legislative article, which, they reasoned, legislators would be unwilling to change.
The Supreme Court concluded that it did not matter whether the amendment was both procedural and structural. What mattered was that the proposed amendment was also substantive, involving the powers of increasing state revenue. Because increasing state revenue was not part of the legislative article (Article IV), the initiative was improper: "To permit this would violate the intent so clearly expressed in the convention committee reports and debates to limit constitutional amendment by initiative to structural and procedural subjects of the legislative article and to prohibit the incorporation into such amendments of substantive matters," the court
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The court reasoned that a controversial issue like abortion could similarly be treated by amendment by creating a committee on privacy and saying, for example, that no bill abolishing (or permitting) abortion could become law without a three-fifths or three-fourths vote. "Almost any substantive issue could be fit within the outlines of structural and procedural changes to subjects of the legislative article crafted by the TAAC.''
The court released its decision in the case of Chicago Bar Association v The State Board of Elections on August 22. Justice Howard Ryan, a conservative Republican, wrote the opinion and noted that the court was not ruling on the merits of the issue. There were no dissents.
The justices were immediately criticized by the politicians. Republican gubernatorial nominee Edgar charged that the court had done the bidding of House Speaker Michael J. Madigan, a backer of Edgar's Democratic opponent Neil F. Hartigan. Madigan spokesman Steve Brown said his boss believes that tax policy should be made by the majority, not the Republican minority.
Hartigan in turn complained that the court ruling was a blow to Illinoisans who wanted to hold the line on taxes, his major campaign issue. Both Edgar and Hartigan pledged to abide by the amendment and veto any tax increase bill that did not receive a three-fifths vote.
The court ruled that the amendment amounted to a general initiative, and the politicians complained. The complaints contrasted with the events of two years ago. In 1988 voters got to decide whether to call a constitutional convention. The political establishment largely lined up against the call. James Tobin, president of the National Taxpayers United of Illinois and a TAAC member, along with a handful of others pressed for a convention. Tobin wanted general initiative to roll back taxes.
In 1988 the political establishment said that general initiative was a bad idea. In 1990 many in the political establishment said this particular initiative was a good idea. The political winds have shifted. The Constitution has not.
For a discussion of the issue underlying the proposed Tax Accountability Amendment, see Illinois Issues, June 1990, p. 6.
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